The Complainant is Belron Hungary Kft. - Zug Branch of Zug, Switzerland, represented by NautaDutilh N.V., the Netherlands.
The Respondent is F. Boom, Rotterdam, the Netherlands. 2. The Domain Names and Registrar
The disputed domain names , and (the “Domain Names”) are registered with SIDN through Hostnet B.V. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 17, 2013. On July 18, 2013, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Names. On July 19, 2013, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 25, 2013. In accordance with the Regulations, article 7.1, the due date for Response was August 14, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 15, 2013.
The Center appointed Remco M.R. van Leeuwen as the panelist in this matter on August 22, 2013. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background
The Panel will proceed on the facts and circumstances as stated by the Complainant and will take into account the information provided by the Center and by SIDN.
The Complainant has been the exclusive owner of, inter alia, the Benelux (word) mark CARGLASS, registered on May 25, 1989, under number 0461610, for products and services in class 12, 21 and 37 (the “Trademark”).
The Domain Names were registered by the Respondent on February 27, 2013 (), March 27, 2013 () and April 3, 2013 (). According to SIDN’s WhoIs information and as confirmed by SIDN, the registrant of the Domain Names is F. Boom, and this person is therefore the Respondent in these proceedings. 5. Parties’ Contentions A. Complainant
A trademark protected under Dutch law
The Complainant claims that its Dutch licensee has promoted the Trademark through long and frequent advertising campaigns for many years, which has resulted in the Trademark becoming a well-known trademark in the Benelux. According to the Complainant, the Domain Names are confusingly similar to the Trademark.
No rights or legitimate interests
According to the Complainant, the Respondent lacks rights and legitimate interests in the Domain Names, because the Respondent’s use of the Domain Names deliberately and inevitably creates the false impression that the Respondent is either part of the Complainant’s organization or is in some other way connected to the Complainant when this is clearly not the case. As far as the Complainant is aware, the Respondent has no relevant trademark rights or trademark applications for CAREGLASS, CGLASS and/or CARE4URGLASS.
Registration or use in bad faith
According to the Complainant, the Domain Names were registered and are being used in bad faith as they are being used by the Respondent for commercial gain by attracting Internet users to the website of the Respondent, where identical goods and services are offered, through the likelihood of confusion which may arise with the Trademark. Moreover, on the website of the Respondent the use of the element CARE4URGLASS, where the element ‘4ur’ is written in a different color and placed over the words ‘care’ and ‘glass’, results in a total image which is identical or at least confusingly similar to the Trademark, according to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Panel has ascertained that the Center has employed reasonably available means to achieve actual notice to the Respondent in accordance with article 16.4 of the Regulations.
In accordance with article 10.3 of the Regulations, since no Response has been filed by the Respondent, the Panel will have to decide on the basis of the Complaint. Based on this article, the Panel will have to grant the Complaint unless it seems unlawful or without merit. Therefore, the Panel will review the Complaint on this basis.
Based on article 2.1 of the Regulations, a request to transfer a domain name must meet three cumulative conditions:
a. The domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name by means of article 2.1(a) under II of the Regulations; and
b. The respondent has no rights to or legitimate interests in the domain name; and
c. The domain name has been registered or is being used in bad faith.
Considering these conditions, the Panel rules as follows. A. Identical or Confusingly Similar
The Complainant has provided evidence that it is the proprietor of the Trademark. The Panel finds that the Domain Names are confusingly similar to this Trademark. Each of the Domain Names consists of the Complainant’s Trademark with only a few letters added or omitted. The Panel considers that the well-known status of the Complainant’s Trademark (at least in the Netherlands) to varying degrees assists an association of the Domain Names with such Trademark, and indeed it is logical in the circumstances to presume that the registration of the Domain Names aims to capitalize precisely on such association.
Taking into account all circumstances, the Panel rules that the Complainant has met the first ground of the Regulations as set out in article 2.1(a) under I. B. Rights or Legitimate Interests
The Complainant has stated that it has not authorized the Respondent to use the Trademark. The Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Names. The Respondent did not file any Response and the Panel has not found any rights or legitimate interests that the Respondent may have in the Domain Names in the record, and will have to presume it has none.
The Panel therefore rules that the Complainant has met the second ground of the Regulations as set out in article 2.1(b). C. Registered or Used in Bad Faith
The Panel notes that the Trademark, which is effective and enforceable in the Netherlands, predates the registration of the Domain Names. The Panel further notes that the Trademark is well known in the Netherlands. Moreover, the Complainant has provided evidence of the website linked to the Domain Names and on which the term “care4urglass” is used in a way that is clearly confusingly similar to the Trademark. In the absence of any evidence to the contrary, the Panel finds it likely that the Respondent registered and is using the Domain Names and for commercial gain, by attracting Internet users to the Respondent’s website through the likelihood of confusion which may arise with the Complainant’s Trademark. The Complainant has furthermore provided evidence that the Domain Name merely resolves to a parking page of the Registrar. However, this does not affect the Panel’s finding of at least bad faith registration in the circumstances of this case.
The Panel rules that the Complainant has met the third ground of the Regulations as set out in article 2.1(c). 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the domain names , and be transferred to the Complainant.
Remco M.R. van Leeuwen
Panelist
Date: August 28, 2013
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